Beruflich Dokumente
Kultur Dokumente
EUGENE VOLOKH
Counsel of Record
Professor of Law
UCLA School of Law
Academic Affiliate
Mayer Brown LLP
405 Hilgard Ave.
Los Angeles, CA 90095
(310) 206-3926
volokh@law.ucla.edu
QUESTION PRESENTED
In McDonald v. City of Chicago, 130 S. Ct. 3020
(2010), this Court held that “incorporated Bill of
Rights protections ‘are all to be enforced against the
States under the Fourteenth Amendment according
to the same standards that protect those personal
rights against federal encroachment.’”
This Court has also held that the Sixth Amend-
ment requires a unanimous jury verdict to convict a
person of a crime. The question presented is:
1. Whether the Sixth Amendment, as incorpo-
rated against the States by the Fourteenth, likewise
requires a unanimous jury verdict to convict a person
of a crime.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED.......................................... i
TABLE OF AUTHORITIES ........................................ v
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
CONSTITUTIONAL PROVISIONS
INVOLVED..................................................................1
STATEMENT ..............................................................2
REASONS FOR GRANTING THE PETITION .........5
I. The Oregon Nonunanimous Jury Rule Is
Inconsistent with This Court’s Holding in
McDonald v. City of Chicago. ................................5
II. The Oregon Nonunanimous Jury Rule Is
Inconsistent with the Understanding of the
Jury Trial Right as of the Ratification of
the Sixth Amendment, as of the
Ratification of the Fourteenth Amendment,
and Since Then.....................................................11
A. The Common Law and Early
Constitutional Commentary Uniformly
Understood “Trial by Jury” To Require
a Unanimous Verdict in Criminal
Cases. ..............................................................12
B. The “Trial by Jury” Was Understood as
Requiring a Unanimous Verdict at the
Time the Fourteenth Amendment Was
Ratified. ...........................................................21
C. The “Trial by Jury” Has Been Seen as
Requiring Unanimity Since the
Enactment of the Fourteenth
Amendment.....................................................23
iii
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TABLE OF CONTENTS—continued
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TABLE OF AUTHORITIES
Page(s)
Cases
Apprendi v. New Jersey, 530 U.S. 466 (2000) ... 11, 24,
26
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TABLE OF AUTHORITIES—continued
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Constitutional Provisions
Statutes
Legislative Materials
xi
TABLE OF AUTHORITIES—continued
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TABLE OF AUTHORITIES—continued
Page(s)
OPINIONS BELOW
The Oregon Court of Appeals decision, App., in-
fra, p. 1a, is unreported, but relies on State v. Cobb,
198 P.3d 978 (Or. Ct. App. 2008), review denied, 213
P.3d 578 (Or. 2009). The Oregon Supreme Court de-
cision denying review, App., infra, p. 3a, is unre-
ported. The trial court issued no opinion.
JURISDICTION
The Oregon Supreme Court denied review on
June 11, 2010. App., infra, p. 3a. This Court has ju-
risdiction under 28 U.S.C. § 1257(a). See PruneYard
Shopping Ctr. v. Robins, 447 U.S. 74, 79 (1980) (“a
state constitutional provision is a ‘statute’ within the
meaning of § 1257(2),” a then-existing provision that
was analogous to the current § 1257(a)).
STATEMENT
1. This case presents the important and recur-
ring question whether it is constitutional for Oregon
and Louisiana, alone among the States, to allow
criminal convictions by nonunanimous jury verdicts.
This Court recently reaffirmed that “incorpo-
rated Bill of Rights protections ‘are all to be enforced
against the States under the Fourteenth Amendment
according to the same standards that protect those
personal rights against federal encroachment.’”
McDonald v. City of Chicago, 130 S. Ct. 3020, 3035
(2010) (plurality opinion); id. at 3058, 3064, 3068
(Thomas, J., concurring in the judgment) (expressing
the same view as to scope of incorporation), discussed
infra p. 6, note 2. And this Court has repeatedly held
that the Sixth Amendment mandates jury unanimity
for federal convictions. See cases cited infra p. 5,
3
5 See Heller, 128 S. Ct. at 2789 (citing the Tiffany and Sedgwick
6See, e.g., People v. Letner, 235 P.3d 62, 112 Cal. Rptr. 3d 746,
834 (Cal. 2010); People v. Huber, 139 P.3d 628, 631 (Colo. 2007);
State v. Mizenko, 127 P.3d 458, 468 (Mont. 2006); State v.
Gales, 658 N.W.2d 604, 627 (Neb. 2003); State v. Rodriguez, 116
P.3d 92, 97–98 (N.M. 2005); State v. Bacon, 702 A.2d 116, 122
n.7 (Vt. 1997).
28
CONCLUSION
For these reasons, the petition for a writ of certi-
orari should be granted.
34
Respectfully submitted.
EUGENE VOLOKH
Counsel of Record
Professor of Law
UCLA School of Law
Academic Affiliate
Mayer Brown LLP
405 Hilgard Ave.
Los Angeles, CA 90095
(310) 206-3926
volokh@law.ucla.edu
Counsel for Petitioner
SEPTEMBER 2010
APPENDIX
1a
STATE OF OREGON,
Plaintiff-Respondent,
v.
A141205
Affirmed.
FEB 22 2010 /s
2a
STATE OF OREGON,
Plaintiff-Respondent,
Respondent on Review,
v.
Court of Appeals
A141205
S058364
STATE OF OREGON,
Plaintiff-Respondent,
v.
STATE OF OREGON,
Plaintiff-Respondent,
v.
STATE OF OREGON,
Plaintiff-Respondent,
v.
STATE OF OREGON,
Plaintiff-Respondent,
v.
A141205
STATE OF OREGON,
Plaintiff-Respondent,
Respondent on Review,
v.
Court of Appeals
A141205
S058364